Citation NR: 9720736
Decision Date: 06/11/97 Archive Date: 06/19/97
DOCKET NO. 95-41 862 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to educational benefits under Chapter 30,
Title 38, United States Code.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD
S. M. Cieplak, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Muskogee,
Oklahoma, which denied the benefit sought on appeal. The
veteran, who had active service from July 1975 to May 1981
and active duty with U. S. Public Health Service since March
1992, appealed the decision to the BVA, and the case was
referred to the Board for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO was incorrect in
not granting the benefit sought on appeal. The veteran
reports that during the hiatus between 1981 and when he
entered the Public Health Service in 1992, he served in an
active drilling unit with the United States Navy Reserves.
He feels that it is unfair with his extensive Reserve service
that he would not be allowed to qualify for educational
benefits. He additionally considers that because of his
status as a medical professional that he was discouraged from
attending retirement seminars and counseling sessions which
would have apprised him of his entitlement in these regards.
Therefore, a favorable determination has been requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed all of the
evidence of record. Based on a review of the evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran is not entitled to
educational benefits under Chapter 30, Title 38, United
States Code.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran first became a member of the Armed Forces in
July 1975 and separated in May 1981.
3. Thereafter, the veteran served on active duty with the
United States Public Health Service begining in March 1992.
CONCLUSION OF LAW
The requirements for educational benefits under Chapter 30,
Title 38, United States Code, have not been met. 38 U.S.C.A.
§§ 3011, 5107 (West 1991); 38 C.F.R. § 21.7042 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A threshold requirement for eligibility for educational
benefits under Chapter 30, Title 38, United States Code is
that an individual first become a member of the Armed Forces
or first enter active duty as a member of the Armed Forces
after June 30, 1995. See 38 U.S.C.A. § 3011(a)(1)(A) (West
1991). In this case, while the veteran has active service by
virtue of his association with the U. S. Public Health
Service since March 1992, he first entered the Armed Forces
in July 1975. This is not disputed by the veteran.
There are certain exceptions for excluding a period of
initial service prior to June 30, 1985. See 38 U.S.C.A.
§ 3011(d) (West 1991). For example, service terminated
because of being a minor for the purpose of services in the
Armed Forces, an erroneous enlistment or induction, or a
defective enlistment agreement will not be considered the
individual's initial period of service. However, in this
case the veteran's initial period of service from July 7,
1975, to May 1981 was not terminated for any of the
enumerated exceptions, nor is this contended by the veteran.
One other possible exception for educational assistance under
Chapter 30 also is not applicable in the veteran’s case. The
veteran is not shown, as of December 31, 1989, to be eligible
for educational assistance benefits under Chapter 34, and was
on active duty at any time during the period beginning on
October 19, 1984, and ending on July 1, 1985, continued on
active duty without a break in service and (1) after June 30,
1985, completed at least three years of continuous active
duty, or (2) after June 30, 1985, been discharged for certain
specific reasons, not contended on appeal or shown by the
record. See 38 U.S.C.A. § 3011(a)(1)(B).
The Board acknowledges the veteran's honorable service since
March 1992 as well as his service with the Reserves.
However, the Board is not free to ignore or make exceptions
to laws passed by Congress. See 38 U.S.C.A. § 7104(c) (West
1991). In this instance, the applicable law is quite
specific as to the criteria for educational benefits. In
this case the veteran is simply not shown to have qualifying
service for educational assistance under Chapter 30. In
short, there is no legal basis to award the entitlement to
Chapter 30 educational benefits. Where the law and not the
evidence is dispositive, the appeal must be terminated or
denied. See Sabonis v. Brown, 6 Vet/App. 426 (1994).
ORDER
Educational benefits under Chapter 30, Title 38, United
States Code, is denied.
RAYMOND F. FERNER
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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